A Quick Guide to the H-1B Visa Process

December 6, 2018

A Quick Guide to the H-1B Visa Process

Companies based in the United States (US) often seek highly qualified applicants from overseas. Candidates chosen and sponsored by companies can enter the US via an H-1B nonimmigrant visa. In fact, H-1B visas bolster the US economy by encouraging the immigration of highly skilled workers. Often, such immigrants are highly educated and contribute significantly to American culture and communities. This is especially true if an H-1B visa holder attains a green card and eventually becomes a naturalized citizen of the US.

The world now consists of a global economy, and H-1B visas allow the US to be internationally competitive. Nanthaveth & Associates is a trusted law firm in Austin, Texas. Their expert immigration attorneys regularly guide companies and workers alike on the rules, regulations, and requirements of H-1B visas. Because proper legal representation is the key to success, it’s essential to work with a top-tier law firm. Working with an attorney is the best way to ensure that all paperwork filed is timely, appropriate, and without error. Contact Nanthaveth & Associates today for a free initial consultation.

H-1B visa facts and statistics

H-1B visas provide companies with the opportunity to employ highly skilled foreign workers. The visas are temporary, and allow foreigners to work with sponsoring companies for up to three years. Under certain conditions, an H-1B visa holder can stay for a maximum of six years (the visa holder’s employer must file another petition with the USCIS). When visa expiration approaches, the holder must either return to their home country or apply for a green card.

Only available to those with “highly specialized knowledge,”[1] H-1B visas require beneficiaries to hold a bachelor’s degree or its foreign equivalent. This is a minimum requirement, and those with graduate degrees, such as a Master’s degree or a doctorate, are also included. Specific fields and organizations are more likely to hire H-1B visa holders. The United States Citizenship and Immigration Services (USCIS) lists requirements for specialty fields on its website. Fields often included are science, technology, engineering, and math (STEM) fields, as well as scholarly pursuits supported by universities.

Annual Limits

The H-1B visa program was created as part of the Immigration Act of 1990. Since then, H-1B visas have become a significant contributor to economic growth and competitiveness of the US job market. A annual limit, or cap, is set each year by Congress. Caps have varied from 195,000 at their height in 2002/2003 to a more modest 65,000 since 2005. Today, H-1B visas are capped at 65,000, though an additional 20,000 visas are available for those foreigners with graduate degrees from American institutions.[2]

As a result of the American Competitiveness in the 21st Century Act, certain institutions are exempt from the annual cap. These include private or public entities like nonprofits, universities, and research institutions. Applications from these organizations account for roughly 10% of applications received.[3]

US companies submit applications each April and visas are provided on a first-come, first-served basis. Though recent demand for H-1B visas has far exceeded the current cap. In 2018, the United States Citizenship and Immigration Services (USCIS) received roughly 190,000 applications for H-1B visas. If requested visas surpass the pre-determined cap within five business days of availability, the system becomes a lottery.

H-1B visa application consistently exceed designated limits

Since 2014, the system has always turned over into a lottery and applications have far exceeded the cap. Table 1 shows the number of H-1B visa applications received by USCIS for each fiscal year. Please note, fiscal year applications are received in April of the previous year. For example, in April 2018, companies submitted applications for fiscal year 2019 visas.

Table 1. Number of H-1B Visa Applications by Fiscal Year, 2014-2019

Fiscal Year

Number of Visa Petitions

Lottery System Activated?

2014

124,000

Yes

2015

172,500

Yes

2016

233,000

Yes

2017

236,000

Yes

2018

199,000

Yes

2019

190,000

Yes

Source: USCIS data and Pew Research Center (see citations)

The data demonstrate that the demand for H-1B visas consistently outstrips supply, at least in the last six years. Since fiscal year 2014, applications for H-1B visas have surpassed the allotted cap within five business days. This high demand means that, at least in the foreseeable future, the system will likely continue to turn over to lottery choice.

H-1B recipients’ country of origin

Beneficiaries of H-1B visas hail from across the globe. Yet, those from specific countries appear to benefit more than others. For example, between fiscal years 2001-2015, 50.5% of H-1B visas were awarded to 892,814 Indian nationals.[4] Chinese workers received the second-largest portion of visas (171,577 workers, 9.7% of total share). Other countries with significant amounts of H-1B visa recipients include Canada, the Philippines, South Korea, and the United Kingdom.

H-1B visa requirements

As is expected with any visa category, only a specific sub-set of foreigners are eligible for consideration. The H-1B visa category is no exception, and a rigorous set of standards apply. Thus, it’s important to explore who can sponsor an H-1B visa, and who can acquire one.

Who can sponsor an H-1B visa?

Only a company can petition for H-1B visas on behalf of potential recipients. In order to apply for H-1B visas, a company or organization must meet the USCIS’s qualifications for a specialized occupation. Many companies that apply for H-1B visas fall within the “STEM” fields – that is, science, technology, engineering, and math. Other prominent organizations receiving H-1B visa workers are universities, nonprofits, and research institutes.

Who can acquire an H-1B visa?

Any qualified foreign national can technically receive an H-1B visa. To be eligible, the visa worker must work within a specialized field (see above) and have a high level of education. The minimum educational requirement for H-1B visa holders is a US bachelor’s degree or its international equivalent. Many H-1B visa workers have graduate degrees as well, holding either a Master’s or doctoral degree. You can research further by reading the full set of eligibility requirements on the USCIS’s website.

In addition to the above requirements, a potential H-1B visa recipient must not have any bars to eligibility. A bar to eligibility is any disqualifying attribute that may prevent a foreign national from receiving approval to enter the US. For example, some bars to eligibility include previous terrorist connections or activity, criminal records or histories, and previous deportations or removals from the US.

Steps to applying for an H-1B visa

Several steps exist in the H-1B visa application process. The processing time from start to finish can be lengthy. Below are the general steps that must happen in order to apply for an H-1B visa.

Firstly, the employer must submit a Labor Condition Application (LCA) to the Department of Labor (DOL).This certified application must accompany the H-1B petition submitted by the employer to the USCIS.

Secondly, a company must file an H-1B petition on the behalf of the recipient by submitting Form I-129, Petition for a Nonimmigrant Worker. At this time, the employer would also submit filing fees, which can vary and will be unique to the application. If the visa lottery is applicable, the lottery must select the application for the process to move forward. H-1B visa lotteries do not apply to exempt workers, like those at universities.

Finally, if chosen, a foreign worker applies for H-1B status with the State Department (if outside the country) or with the USCIS (if inside the US at time of application).

Once an application has been fully submitted, processing times may vary. Recently, there’s been an increase in the amount of applications which receive requests for evidence (RFE) from the USCIS. RFEs can delay processing times significantly, so the recent uptick is important for both employers and employees alike.

H-1B visas and the Trump administration

In April 2017, President Donald Trump signed the “Buy American and Hire American”executive order (EO). As a result of this EO, the USCIS increased its number of denials and requests for evidence (RFEs). Further, a July 2018 brief by the National Foundation for American Policy found that H-1B denial rates skyrocketed by 41 percentage points between the third and fourth quarters of FY 2017.[5] This is an increase from a 15.9% denial rate in the third quarter to a 22.4% in the fourth quarter.

Even more stunning is the increase in RFEs between the third and fourth quarters of FY 2017. The USCIS issued RFEs for approximately 69% of applications processed during the fourth quarter. That number represents a massive increase from the third quarter, considering only 23% of applications received RFEs during that time. In fact, the amount of applications receiving RFEs in the fourth quarter nearly equals those receiving RFEs for the remainder of FY 2017. [6] In conclusion, these data are disconcerting, and highlight potential concerns for the US economy as the government makes employing foreign workers more difficult.

Changes to H-1B Visa Selection Process Proposed

On Friday, November 30, the Trump administration announced proposed changes to the H-1B selection process. The proposal, released by the Department of Homeland Security (DHS), hopes to change the H-1B process from a true lottery to a more merit-based system. Currently, the 20,000 visas reserved for those with advanced degrees from US institutions are allotted first, while the 65,000 additional visas are chosen after. The new system would include all applicants with advanced degrees in the original drawing, and choose the additional 20,000 visas after. Further, the USCIS says this change could increase the number of H-1B holders with advanced degrees by 16%.

Additionally, the process would no longer require businesses to pre-register for H-1B visas. Instead, businesses whose H-1B visas applicants were selected would simply register all applicants before selection. If an applicant is chosen, a company would then submit a full application after the fact. While certainly problems may occur with the new system, it is likely designed to simplify the process. According to The San Francisco Chronicle, the new registration system may be aimed at companies that often “flood” the current system with unsuitable H-1B candidates. Under this system, the candidates would face scrutiny first, limiting the amount of petitions received by companies.

In conclusion, it appears that the changes to the H-1B process may take effect within the next fiscal year. Thus, potential H-1B companies and beneficiaries should be prepared for an updated system and application process. As a result, anyone with questions about the new potential policies should contact an immigration attorney.

Work with an expert immigration attorney

In today’s political climate, it’s important that any employer or employee seeking an H-1B visa have adequate legal representation. The government clearly intends to make the process harder, as proven by evidence presented above. Above all, a qualified and compassionate immigration attorney can walk applicants through each step of the process and guide the submission of evidence, paperwork, and any other legal documents. The attorneys at Nanthaveth & Associates are experienced in all facets of immigration law, including business visas. Contact an expert immigration attorney today for a free initial consultation.